Bechara v Bates (No 2)

[2020] FCA 659

FEDERAL COURT OF AUSTRALIA

Bechara v Bates (No 2) [2020] FCA 659

File number:

NSD 2386 of 2018

Judge:

ALLSOP CJ

Date of judgment:

14 May 2020

Legislation:

Constitution, s 75(v)

Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth)

Bankruptcy Act 1966 (Cth), s 52

Federal Circuit Court of Australia Act 1999 (Cth), s 104

Federal Court of Australia Act 1976 (Cth), ss 20(1A), 24, 25, 33(4B)

Judiciary Act 1903 (Cth), s 39B

Cases cited:

Bates v Bechara [2016] FCCA 3489

Bates v Bechara (No 2) [2017] FCCA 985

Bechara v Bates [2018] FCA 460

Bechara v Bates [2018] HCATrans 164

Bechara v Bates [2019] FCA 1077

Binetter v Deputy Commissioner of Taxation (No 2) [2011] FCA 207

Harris v Caladine [1991] HCA 9; 172 CLR 84

Martin v Commonwealth Bank of Australia [2001] FCA 87

Totev v Sfar [2008] FCAFC 35; 167 FCR 193

Zdrilic v Hickie [2016] FCAFC 101; 246 FCR 532

Date of hearing:

14 May 2020

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

No Catchwords

Number of paragraphs:

35       

Counsel for the Appellant:

Mr A Martin

Solicitor for the Appellant:

Martin Legal

Counsel for the Respondent:

Mr P Bates

Solicitor for the Respondent:

Bannister Law

ORDERS

NSD 2386 of 2018

BETWEEN:

MARIA BECHARA

Appellant

AND:

PHILIP BATES

Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	14 MAY 2020

THE COURT ORDERS THAT:

1.The matter be stood over to a date to be fixed in the week commencing Monday 18 May 2020, for further case management.

2.The afternoon prior to the case management hearing the parties file submissions as referred to in [33] of the reasons herein.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ:

1. This matter has a long and, to a degree, unfortunate history.  Ms Bechara and Mr Bates are both legal practitioners.  On 11 December 2015, a bankruptcy notice was issued on behalf of Mr Bates and served upon Ms Bechara.  On 30 December 2015, she filed an application to set that bankruptcy notice aside.  The bankruptcy proceedings, which culminated in a creditor’s petition, concerned a sum of somewhat over $100,000 arising out of proceedings in State courts.  It matters not, for present purposes, the nature of the asserted debt.

2. In due course, a creditor’s petition was filed by Mr Bates.  An application of substituted service was made and acceded to by a registrar of the Court, and a sequestration order was made by a registrar of the Court on 5 July 2016.  Later that month, Ms Bechara filed an interim application in relation to the registrar’s sequestration order.  She asserted that she did not have notice of the creditor’s petition. 

3. There may, in due course, be importance in the precise form of that application. For present purposes, it has been treated as an application for review of the…